Ship pumping ballast water.
Photograph Attribution: US Coast Guard, Public domain, via Wikimedia Commons
From: Smar, Matt (EGLE) < This email address is being protected from spambots. You need JavaScript enabled to view it.
To: Nelly Montanez <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date: Jan 21, 2021, 4:06 PM
Subject: RE: Michigan Department of Environment, Great Lakes, and Energy for Federal Consistency Review for the Performance of Marine Pollution Control Devices for Vessels for Michigan, Comments Due 12-28-20
Good afternoon Ms. Montanez – thank you for submitting comments. The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has objected to the U.S. EPA’s proposed National Discharge Standards for discharges incidental to the operation of certain vessels. Responses to your comments have been added into your e-mail below.
1) RESPONSE: Thank you for bringing the nonfunctional link to our attention. EGLE staff responsible for publishing the EGLE Environmental Calendar were notified that the link in the public notice required repair on December 14, 2020.
2) RESPONSE: Federal regulations require states to complete federal consistency reviews and meet public notice requirements within a 60-day timeframe unless an extension is granted. This federal requirement restricts the length of time states can accept comments from the public for consideration.
3) RESPONSE: The proposed National Discharge Standards would authorize discharges of pollutants that would not comply with Michigan’s Water Quality Standards contained in administrative rules R 323.1041 to R 323.1117 of the Michigan Administrative Code. EGLE objects to the proposed discharge standards because they are not consistent with Michigan’s Water Quality Standards and other water quality requirements. In the U.S. EPA’s National Consistency Determination letter to coastal states, the federal agency did not indicate that it used environmental impact statement review procedures to determine consistency with the enforceable policies of state coastal management programs.
4) RESPONSE: The proposed federal rule applies nationally. It may be appropriate for the U.S. EPA to develop such estimates on a regional or nationwide basis.
5) RESPONSE: EGLE objects to the proposed National Discharge Standards because they are not consistent with the enforceable policies of Michigan’s Coastal Management Program.
6) RESPONSE: According to the October 26, 2020, Federal Register notice, the U.S. Coast Guard must develop implementation, compliance, and enforcement regulations within two years after the U.S. EPA issues the national discharge standards. Publication of the proposed U.S. Coast Guard regulations in the Federal Register will provide an opportunity to submit comments on the role of states in the federal regulatory program.
All the best,
Matt
Matt Smar
Field Operations Support Section
Water Resources Division
EGLE
This email address is being protected from spambots. You need JavaScript enabled to view it.
___________________________________________________
Michigan Department of Environment, Great Lakes, and Energy
Water Resources Division
P.O. Box 30458
Lansing, Michigan 48909-7958
Via email at This email address is being protected from spambots. You need JavaScript enabled to view it.
Re: Michigan Department of Environment, Great Lakes, and Energy for Federal Consistency Review for the Performance of Marine Pollution Control Devices for Vessels for Michigan, Comments Due 12-28-20
Dear Mr. Smar,
Environmental Review, Inc. has reviewed the proposed rule and has the following comments:
1) Please make sure the relevant documents for review are uploaded properly to the Michigan Department of Environment, Great Lakes, and Energy (EGLE) Environmental Calendar to foster community involvement. In this case, I found out that the link to the public notice was broken. Upon clicking the link, an error was displayed that read the following: "Due to an internal error, this web page could not be loaded. We recommend that you close this page" and I had to search and follow up with the caseworker to obtain information which should have been readily available with the comment period public notice.
2) EPA’s proposed rule, supporting documentation, and the Michigan’s Coastal Management Program (MCMP) documents are both several hundred pages long and create a challenge to review and submit public comments for in such a limited time period. In order to foster community involvement, please extend the Public Comment period for an additional 30 or more days to allow me and the general public more time to conduct a thorough review and provide feedback of the documents.
3) According to page 147 of the MCMP, any major federal agency activity which may significantly impact the coast should use environmental impact statement (EIS) review procedures, to determine consistency with the MCMP.1 Does the EGLE Department have cause to believe that the proposed rule will significantly impact Michigan’s coast? Additionally, did the EPA use EIS review procedures to determine consistency with the MCMP?
4) Commercial fishing vessels and other non-recreational vessels less than 79 feet in length are currently covered under the 2013 Vessel General Permit (VGP) or EPA’s small VGP (sVGP). Per the proposed Vessel Incidental Discharge National Standards of Performance, vessels less than 79 feet in length are exempt. However, the rule applies to any discharge of ballast water. The document failed to present statistics on the effective impact of the proposed rule. We suggest that the State of Michigan provide information on these impacts (e.g., add a table showing how many vessels are currently regulated and provide information as to the number of vessels that will be both impacted and left unregulated by the proposed rule).
5) Page 73, chapter III, of the MCMP states that Michigan’s policy prohibits the pollution of any waters of the State and the Great Lakes.2 The State of Michigan requires the aforementioned and the federal rule proposes to not require vessel operators to minimize/avoid uptake of ballast water in certain areas and situations (e.g., toxic algal blooms).3 The proposed rule would appear to result in a failure to follow BMPs; therefore, the proposed rule should not be adopted. Not requiring this BMP makes the proposed standards less stringent than the existing 2013 VGP (i.e., operators would be able to uptake ballast water in areas known to have infestations or populations of harmful organisms and pathogens).
6) Page 67874 - Per Section X, 7th full paragraph, of the Vessel Incidental Discharge National Standards of Performance, “the proposed rule does not include implementation, compliance, or enforcement provisions”. The USCG is set to promulgate the monitoring and enforcement requirements of the proposed standards, conceivably indicating the new role for each state. The final rule should specify what measures the State of Michigan will take to prepare for a smooth transition. Additionally, the final rule should specify what the State of Michigan will be required to do to ensure that the Great Lakes are protected during any transitional period.
When responses to these comments are available, please email them to me at This email address is being protected from spambots. You need JavaScript enabled to view it..
Thank you,
Nelly Montanez (Associate in Illinois)
Environmental Reviewer
Environmental Review, Inc. (501 (c)(3) Nonprofit Public Benefit Corporation)
1792 Rogers Avenue
San Jose, CA 95112
Footnotes
1 MCMP Federal Consistency - Federal Conducted Or Supported Activities section
2 MCMP, Chapter III - Program Policies and Action Programs, Areas of Natural Economic Potential, Michigan Policy Relating to Water Transportation Areas section. (Act No. 245 is further detailed starting on page C-41, Appendix C State Regulatory and Incentive Programs of the MCMP).
3 Vessel Incidental Discharge National Standards of Performance section VIII. Development of National Discharge Standards of Performance, B. Discharges Incidental to the Normal Operation of a Vessel - Specific Standards, 2. Ballast Tanks, IV. Ballast Water Best Management Practices (BMPS), H. Best Management Practices Not Continued From Existing Requirements.